Strahan v. Coxe

In April 1995, Richard Strahan ("Strahan") filed suit against Trudy Coxe, Secretary of the Massachusetts Executive Office of Environmental Affairs, John Phillips, Commissioner of the Massachusetts Department of Fisheries, Wildlife, and Environmental Law Enforcement, and Philip Coates, Director of the Massachusetts Division of Marine Fisheries (together "defendants"), claiming that these Massachusetts state officers were violating the federal Endangered Species Act ("ESA"), 16 U.S.C. § 1531 et seq., and the Marine Mammals Protection Act ("MMPA"), 16 U.S.C. § 1361 et seq. Strahan sought a preliminary injunction ordering the Commonwealth to revoke licenses and permits it had issued authorizing gillnet and lobster pot fishing and barring the Commonwealth from issuing such licenses and permits in the future unless it received "incidental take" and "small take" permits from the National Marine Fisheries Service ("NMFS") under the ESA and MMPA. Defendants moved to dismiss Strahan's complaint and, in the alternative, for summary judgment.

On September 24, 1996, the district court: (1) denied defendants' motion for summary judgment on Strahan's ESA claims; (2) dismissed Strahan's MMPA claims; and (3) granted summary judgment on Strahan's ESA claims in Count IV of Strahan's amended complaint. Strahan v. Coxe, 939 F.Supp. 963 (D.Mass.1996). In this ruling, the district court declined to grant the preliminary injunctive measures sought by Strahan. Instead, the court issued a preliminary injunction ordering defendants to: (1) "apply for an incidental take permit [under the ESA] from NMFS ... for Northern Right whales"; (2) "apply for a permit under the [MMPA] for Northern Right whales"; (3) "develop and prepare a proposal ... to restrict, modify or eliminate the use of fixed-fishing gear in coastal waters of Massachusetts listed as critical habitat for Northern Right whales in order to minimize the likelihood additional whales will actually be harmed by such gear"; and (4) "convene an Endangered Whale Working Group and to engage in substantive discussions with the Plaintiff [Strahan], or his representative, as well as with other interested parties, regarding modifications of fixed-fishing gear and other measures to minimize harm to the Northern Right whales." Id. at 990-91. Defendants appeal the district court's preliminary injunction order. Plaintiff Strahan cross-appeals the district court's: (1) refusal to grant him the precise injunctive relief sought; (2) dismissal of his MMPA claims; (3) alleged limitation on his right to discovery; and (4) alleged error in a factual ruling.1 For the reasons stated herein, we vacate paragraph two of the injunction, requiring defendants to apply for a permit under the MMPA, and otherwise affirm the district court's opinion and order of injunctive relief.

Strahan is an officer of GreenWorld, Inc., an organization dedicated to the preservation and recovery of endangered species. Strahan, 939 F.Supp. at 966 & n. 6. Strahan brought suit on behalf of the Northern Right whale, listed as an endangered species by the federal government. See 50 C.F.R. § 222.23(a). Northern Right whales are the most endangered of the large whales, Strahan, 939 F.Supp. at 968, presently numbering around 300, 62 Fed.Reg. 39157, 39158 (1997). Entanglement with commercial fishing gear has been recognized as a major source of human-caused injury or death to the Northern Right whale. Final Recovery Plan for the Northern Right Whale (Eubalaena Glacialis), NMFS (December 1991)("Right Whale Recovery Plan") at 24; see also Strahan, 939 F.Supp. at 972. Collision with ships is also a significant cause of Northern Right whale death. See Right Whale Recovery Plan at 10; Strahan, 939 F.Supp. at 972.

The majority of Northern Right whales are present in Massachusetts waters only during spring feeding. Strahan, 939 F.Supp. at 968. The district court found, based on statements made by defendants as well as on affidavits from three scientists, that Northern Right whales have been entangled in fixed fishing gear in Massachusetts coastal waters at least nine times. See Strahan, 939 F.Supp. at 984 ("On May 15, 1983, a Right whale was observed 'thrashing around' a location three miles east of Manomet Point in Plymouth, MA because of its entanglement in ropes attached to lobster buoys.... Right whales were also found entangled in lobster and other fishing gear in Massachusetts waters on June 16, 1978, May 13, 1982, October 14, 1985, May 15, 1983, August 29, 1986, August 7, 1993, November 17, 1994, and August 17, 1995. At least one of these whales was not expected to survive its injuries from the gear."). Moreover, a Northern Right whale mortality was reported off Cape Cod, Massachusetts in May 1996. 61 Fed.Reg. 41116, 41117 (Aug. 7, 1996).

The NMFS issued a final interim rule proposing to close off entirely the critical habitat of the Northern Right whale and to modify fishing practices to enhance the viability of the Northern Right whale. Taking of Marine Mammals Incidental to Commercial Fishing Operations; Atlantic Large Whale Take Reduction Plan Regulations, 62 Fed.Reg. 39157, 39158-39159 (July 22, 1997). The report accompanying the proposed rule recognized that entanglement with fishing gear is one of the leading causes of the depletion of the Northern Right whale population and indicated that more than half of the Northern Right whale population bear scars indicating unobserved and unrecorded earlier entanglement. Id. The report calls for a ban on gillnet fishing and lobster pot fishing, the two manners of fishing at issue in this case, during the Northern Right whales' high season in the Cape Cod Bay Critical Habitat from January 1 to May 15 of each year, and in the Great South Channel from April 1 to June 30, until modified fishing equipment is developed that will diminish the risk of injury and death to the Northern Right whale. Id. at 39159-39160.

II. Massachusetts' regulatory authority scheme

The Massachusetts Division of Marine Fisheries ("DMF") is vested with broad authority to regulate fishing in Massachusetts's coastal waters, Mass. Gen. L. c. 130, which extend three nautical miles from the shoreline, see Strahan, 939 F.Supp. at 974. Nearly all commercial fishing vessels must receive a permit from DMF in order to take fish, including shellfish, from Massachusetts coastal waters. 322 C.M.R. §§ 7.01-7.05, 8.08. DMF is a division of the Department of Fisheries, Wildlife and Environmental Law Enforcement, which is part of the Executive Office of Environmental Affairs. Id.; Mass. Gen. L. c 21A, §§ 2, 7, 8. The Division of Fisheries and Wildlife, a subcomponent of the Department of Fisheries, Wildlife and Environmental Law Enforcement, "has authority over all endangered species of Massachusetts including marine mammals." Id. (quoting Coates Aff. p 3).

The DMF has limited the use of gillnets and lobster pot fishing gear in certain areas. See id. at 974-75; see also 322 C.M.R. § 4.09 (restricting use of gillnets south and west of Cape Cod), § 4.11 (restricting use of gillnets in Massachusetts Bay), § 4.13 (regulating fixed gear marking and maximum length requirements), § 6.13 (setting lobster trap limit), § 8.10 (fixed gear restrictions). "In 1994, in response to the alarming depletion of the Harbor porpoise, DMF ordered that all sink gillnets be removed from coastal waters north of Cape Ann every November and from Massachusetts Bay and Cape Cod Bay every March." 939 F.Supp. at 975 (citing DMF Rules Update (Nov. 2, 1994)).

In addition, the DMF has established a 500-yard "buffer zone" around Northern Right whales in Massachusetts coastal waters. 322 C.M.R. § 12.00-12.05 (1993). Defendant Coates admitted that he had "issued a limited number of scientific research permits to some whale watch vessels exempting them from the 500 yard buffer zone surrounding right whales for scientific research purposes upon application." Coates Aff. p 11.

In ruling on a motion for preliminary injunction, a district court is charged with considering:

(1) the likelihood of success on the merits; (2) the potential for irreparable harm if the injunction is denied; (3) the balance of relevant impositions, i.e., the hardship to the nonmovant if enjoined as contrasted with the hardship to the movant if no injunction issues; and (4) the effect (if any) of the court's ruling on the public interest.

Ross-Simons of Warwick, Inc. v. Baccarat, Inc., 102 F.3d 12, 15 (1st Cir.1996). Under the ESA, however, the balancing and public interest prongs have been answered by Congress' determination that the "balance of hardships and the public interest tips heavily in favor of protected species." National Wildlife Fed'n v. Burlington Northern R.R., 23 F.3d 1508, 1510 (9th Cir.1994). Our review of the district court's ruling on a motion for preliminary injunction is deferential and, "unless the appellant can show that the lower court misapprehended the law or committed a palpable abuse of discretion, the court of appeals will not intervene." Ross-Simons of Warwick, Inc., 102 F.3d at 16.

Strahan contends on cross-appeal that the district court erred when it determined that he could not bring a citizen suit under the provisions of the Marine Mammal Protection Act. See 939 F.Supp. at 975. Defendants, on the other hand, argue that the district court, having properly found that it lacked jurisdiction under the MMPA, erroneously entered a remedy under the MMPA when it ordered the Commonwealth, in paragraph 2 of the preliminary injunction order, to apply for an incidental take permit pursuant to section 1387 of the MMPA and, in paragraph 4, to convene a working group similar to those initiated pursuant to the MMPA. See id. at 990-91. We find that the district court properly held that it lacked jurisdiction under the MMPA, and therefore its remedy in paragraph 2 based on the MMPA was erroneous. We find, however, that the remedy in paragraph 4 was not ordered pursuant to the MMPA, but instead was intended to be modelled on MMPA working groups and, therefore, was not erroneous.

The MMPA does not authorize citizen suits against a person alleged to be in violation of the Act. The Act states that, "[e]xcept as otherwise provided in this subchapter, the Secretary shall enforce the provisions of this subchapter." 16 U.S.C. § 1377. The district court properly recognized that the Act does not authorize the federal courts to enforce its provisions in the type of suit brought by Strahan. See 939 F.Supp. at 975. In addition, the court properly found that the Administrative Procedure Act, 5 U.S.C. § 701 et seq., does not authorize suits against state officials. See 939 F.Supp. at 975. Based on these findings, the court correctly concluded that it did not have jurisdiction under the MMPA.

Seeking a contrary ruling, Strahan relies solely on Kokechik Fishermen's Association v. Secretary of Commerce, 839 F.2d 795, 802 (D.C.Cir.1988). In that case, the court affirmed a district court ruling that an incidental take permit issued by the Secretary of Commerce was contrary to the requirements of the MMPA. Id. The federal court had jurisdiction to hear the claims presented in Kokechik by virtue of 16 U.S.C. § 1374(d)(6), which authorizes judicial review of the terms and conditions of a permit issued by the Secretary. See Kokechik, 839 F.2d at 797. Thus, the case stands for the uncontroversial proposition that a citizen can seek review of the Secretary's actions under the MMPA, and does not provide authority to support Strahan's position that a private citizen can seek an injunction against a state official under the MMPA.

Defendants' argument respecting the remedy ordered in paragraph 2 has merit. Defendants argue that if the district court has no jurisdiction under the MMPA, it logically follows that the district court may not order a remedy that requires compliance with provisions of the MMPA. In paragraph 2, the district court ordered the Commonwealth officials to comply with the terms of the MMPA by applying for an incidental take permit pursuant to 16 U.S.C. § 1387. Except with respect to review of permits actually granted, Congress vested enforcement of the provisions of the MMPA in the Secretary of Commerce, not in the federal courts. See 16 U.S.C. § 1377. Consequently, the district court lacked the jurisdiction to order that the defendants comply with the MMPA. We therefore vacate paragraph 2 of the district court's preliminary injunction order.

We have considered the argument of the Conservation Law Foundation that the cross-reference provision, cited by the district court, effectively makes the substantive provisions of the MMPA part of the ESA for purposes of enforcement through a citizen's suit. Although the argument is not frivolous, on balance we think that the provision does not incorporate one statute into the other. It merely prevents anyone from arguing that the less restrictive requirements of one statute supersede the more restrictive requirements of the other.

On the other hand, the substantive provisions of the Marine Mammal Protection Act appear to be triggered by the same activities that the district court, at least for preliminary injunction purposes, found to be a taking. To the extent that the defendants may fail to meet the arguably more stringent standards of the MMPA, the Secretary of Commerce might conclude that it was improper to issue a permit under the ESA for activities that were unlawful under another statute also administered by the Secretary. It is premature for this Court to decide how the matter should be resolved if the Secretary took a different view and issued an ESA permit while ignoring a violation of the MMPA.

Finally, defendants contend that the district court lacked jurisdiction under the MMPA to order the defendants to form a working group modeled on working groups required pursuant to the MMPA. The district court's order was as follows:

Fourth, the Defendants will be ordered to convene an Endangered Whale Working Group and to engage in substantive discussions with the Plaintiff, or his representative, as well as with other interested parties, regarding modifications of fixed-fishing gear and other measures to minimize harm to the Northern Right whales.

939 F.Supp. at 991. We understand the district court here to be ordering, under its equitable powers, a working group that is merely modelled on MMPA working groups dedicated to the preservation of other marine mammals. Nothing suggests that this portion of the district court's order was issued pursuant to any authority other than its equitable powers. That is, we do not read this order as emanating from the provisions of the MMPA itself, but rather from the court's inherent powers to fashion appropriate equitable relief. See discussion of equitable powers, infra at 34. Thus, we find no abuse in this exercise of discretion and we do not find any error.

The Endangered Species Act was enacted with the purpose of conserving endangered and threatened species and the ecosystems on which they depend. See 16 U.S.C. § 1531. The ESA is "the most comprehensive legislation for the preservation of endangered species ever enacted by any nation." TVA v. Hill, 437 U.S. 153, 180, 98 S.Ct. 2279, 2294, 57 L.Ed.2d 117 (1978). The Act empowers the Secretary of Commerce to recommend to the Secretary of the Interior that a species be listed as endangered or threatened and that the species' habitat be listed as a critical habitat. See § 1533(a)(2)(A). The Secretary of the Interior, if he concurs, shall implement the designation. See § 1533(a)(3)(A). The Act further requires the Secretary to develop and implement plans for the conservation and survival of an endangered or threatened species. See § 1533(f). The Northern Right whale has been listed as endangered pursuant to the ESA. See 50 C.F.R. § 222.23(a).

As it relates to this litigation, the ESA prohibits any person from "tak[ing] any [endangered] species within the United States or the territorial sea of the United States." § 1538(a)(1)(B). In addition, the ESA makes it unlawful for any person "to attempt to commit, solicit another to commit, or cause to be committed, any offense defined" in the ESA. See § 1538(g). The term " 'take' means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." § 1532(19). " 'Take' is defined ... in the broadest possible manner to include every conceivable way in which a person can 'take' or attempt to 'take' any fish or wildlife." S.Rep. No. 93-307, at 7 (1973); see also Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687, 703-04, 115 S.Ct. 2407, 2416, 132 L.Ed.2d 597 (1995) (citing Senate and House Reports indicating that "take" is to be defined broadly). The Secretary of the Interior has defined "harm" as "an act which actually kills or injures wildlife. Such act may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering." See 50 C.F.R. § 17.3 (1994); Sweet Home, at 695-701, 115 S.Ct. at 2412-14 (upholding the regulation as a reasonable interpretation of the statutory language). The term "person" includes "any officer, employee, agent, department, or instrumentality ... of any State, municipality, or political subdivision of a State ... [or] any State, municipality, or political subdivision of a State...." 16 U.S.C. § 1532(13).

Under the ESA regulatory scheme, the National Marine Fisheries Service ("NMFS"), part of the National Oceanic and Atmospheric Administration ("NOAA") within the Department of Commerce, is responsible for species of the order Cetacea (whales and dolphins) under the ESA and the MMPA. See ESA, 16 U.S.C. §§ 1532(15), 1540; MMPA, 16 U.S.C. §§ 1362(12), 1377; Incidental Take of Endangered, Threatened and Other Depleted Marine Mammals, 54 Fed.Reg. 40,338 (1989). Under the ESA, the Secretary of Commerce, acting through the NMFS, may permit the taking of an endangered species if that taking is "incidental to, and not the purpose of, the carrying out of an otherwise lawful activity." § 1539(a)(1)(B). Pursuant to an application for an incidental take permit, an applicant must submit a conservation plan discussing the impact of the incidental takings, the steps the applicant will take to minimize the impact, and the alternatives considered with reasons why the alternatives would not be implemented. See § 1539(2)(A).

On August 31, 1995, the NMFS implemented a prohibition on any taking of a Northern Right whale incidental to commercial fishing operations. See Taking of Threatened or Endangered Marine Mammals Incidental to Commercial Fishing Operations; Interim Permit, 60 Fed.Reg. 45,399 (NMFS) (Aug. 31, 1995). In addition, the NMFS recently implemented a ban on approaches within 500 yards of a Northern Right whale. See North Atlantic Northern Right Whale Protection; Interim Final Rule, 62 Fed.Reg. 21562 (Apr. 25, 1997). This restriction brings the federal approach distance in line with the Massachusetts 500 yard approach prohibition. See 322 Code Mass. Reg. § 12.05.

Furthermore, the NMFS has proposed an interim final rule, modifying 50 C.F.R. pt. 229 and set to become effective November 15, 1997, 62 Fed.Reg. 39157 (July 22, 1997), that restricts the use of gillnet and lobster pot fishing gear during specific times of the year unless the gear conforms to marking and design requirements set forth within the provision. See 62 Fed.Reg. at 39184. The regulation restricts lobster pot fishing, unless in compliance with gear modification requirements, in the Cape Code Bay Restricted Area from January 1 to May 15 of each year. Id. at 39185. During the remainder of the year, lobster pot gear must comply with at least two of the gear modification restrictions. Id. at 39186. The Great South Channel Restricted Lobster Area is similarly restricted from April 1 to June 30 of each year. Again, during the remainder of the year, lobster pot gear must comply with at least two of the gear modification restrictions. Id. With respect to gillnet fishing, such fishing is prohibited from January 1 through May 15 of each year unless the gear complies with modifications that may be required by regulations promulgated by the Assistant Administrator. Id. at 39187. During the remainder of the year, no person may engage in gillnet fishing unless the gear complies with at least two modifications listed in the Gillnet Take Reduction Technology List in paragraph (d)(9) of the section. Id. The same restrictions apply to the Great South Channel restricted gillnet area, with a spring closure period from April 1 to June 30 of each year and a restricted period for the duration of the year. Id. In all other northeast waters, restricted fishing, with modified gillnet or lobster pot gear similar to that allowed in the Cape Cod and Great South Channel areas, is allowed. Id. at 39186-39187. These proposed restrictions, however, do not impact on the district court's and this court's consideration of whether Massachusetts, through its fishing licensure scheme, has violated the provisions of the ESA.

The district court's reasoning, in finding that Massachusetts' commercial fishing regulatory scheme likely exacted a taking in violation of the ESA, was founded on two provisions of the ESA read in conjunction. The first relates to the definition of the prohibited activity of a "taking," see § 1538(a)(1)(B), and the second relates to the solicitation or causation by a third party of a prohibited activity, such as a taking, see § 1538(g). The district court viewed these provisions, when read together, to apply to acts by third parties that allow or authorize acts that exact a taking and that, but for the permitting process, could not take place. Indeed, the district court cited several opinions that have also so held. See, e.g., Sierra Club v. Yeutter, 926 F.2d 429, 438-39 (5th Cir.1991) (finding Forest Service's management of timber stands was a taking of the red-cockaded woodpecker in violation of the ESA); Defenders of Wildlife v. EPA, 882 F.2d 1294, 1301 (8th Cir.1989) (holding that the EPA's registration of pesticides containing strychnine violated the ESA, both because endangered species had died from ingesting strychnine bait and because that strychnine could only be distributed pursuant to the EPA's registration scheme); Palila v. Hawaii Dep't of Land and Nat. Resources, 639 F.2d 495, 497-98 (9th Cir.1981) (holding state's practice of maintaining feral goats and sheep in palila's habitat constituted a taking and ordering state to remove goats and sheep); Loggerhead Turtle v. County Council of Volusia County, 896 F.Supp. 1170, 1180-81 (M.D.Fla.1995) (holding that county's authorization of vehicular beach access during turtle mating season exacted a taking of the turtles in violation of the ESA). The statute not only prohibits the acts of those parties that directly exact the taking, but also bans those acts of a third party that bring about the acts exacting a taking. We believe that, contrary to the defendants' argument on appeal, the district court properly found that a governmental third party pursuant to whose authority an actor directly exacts a taking of an endangered species may be deemed to have violated the provisions of the ESA.

The defendants argue that the statute was not intended to prohibit state licensure activity because such activity cannot be a "proximate cause" of the taking. The defendants direct our attention to long-standing principles of common law tort in arguing that the district court improperly found that its regulatory scheme "indirectly causes" these takings. Specifically, the defendants contend that to construe the proper meaning of "cause" under the ESA, this court should look to common law principles of causation and further contend that proximate cause is lacking here. The defendants are correct that when interpreting a term in a statute which is, like "cause" here, well-known to the common law, the court is to presume that Congress intended the meaning to be interpreted as in the common law. See Veiga v. McGee, 26 F.3d 1206, 1210 (1st Cir.1994). We do not believe, however, that an interpretation of "cause" that includes the "indirect causation" of a taking by the Commonwealth through its licensing scheme falls without the normal boundaries.

The defendants protest this interpretation. Their first argument is that the Commonwealth's licensure of a generally permitted activity does not cause the taking any more than its licensure of automobiles and drivers solicits or causes federal crimes, even though automobiles it licenses are surely used to violate federal drug laws, rob federally insured banks, or cross state lines for the purpose of violating state and federal laws. The answer to this argument is that, whereas it is possible for a person licensed by Massachusetts to use a car in a manner that does not risk the violations of federal law suggested by the defendants, it is not possible for a licensed commercial fishing operation to use its gillnets or lobster pots in the manner permitted by the Commonwealth without risk of violating the ESA by exacting a taking. Thus, the state's licensure of gillnet and lobster pot fishing does not involve the intervening independent actor that is a necessary component of the other licensure schemes which it argues are comparable. Where the state has licensed an automobile driver to use that automobile and her license in a manner consistent with both state and federal law, the violation of federal law is caused only by the actor's conscious and independent decision to disregard or go beyond the licensed purposes of her automobile use and instead to violate federal, and possibly state, law. The situation is simply not the same here. In this instance, the state has licensed commercial fishing operations to use gillnets and lobster pots in specifically the manner that is likely to result in a violation of federal law. The causation here, while indirect, is not so removed that it extends outside the realm of causation as it is understood in the common law.2

The defendants' next argument need only detain us momentarily. They contend that the statutory structure of the ESA does not envision utilizing the regulatory structures of the states in order to implement its provisions, but that it instead leaves that implementing authority to NMFS. The point that the defendants miss is that the district court's ruling does not impose positive obligations on the Commonwealth by converting its regulation of commercial fishing operations into a tool of the federal ESA regulatory scheme. The Commonwealth is not being compelled to enforce the provisions of the ESA. Instead, the district court's ruling seeks to end the Commonwealth's continuing violation of the Act.3

Defendants also contend that the district court's ruling is erroneous because it fails to give deference to the position of NMFS, the federal agency charged with enforcing the ESA. The defendants' position is flawed for two reasons. First, the ESA gives NMFS, through the Secretary, discretion in authorizing takings incidental to certain commercial activity; the Act does not give a federal court, having determined that a taking has occurred, the same discretion in determining whether to grant injunctive relief. Second, the fact that NMFS has expressly declined to ban gillnet or lobster pot fishing in Cape Cod Bay does not reflect a policy determination by NMFS that such a ban is unnecessary. For these two reasons, we find the defendants' deference arguments without merit.

We review the district court's findings of fact for clear error. See Concordia Co. v. Panek, 115 F.3d 67, 69 (1st Cir.1997). The district court found that entanglement with fishing gear in Massachusetts waters caused injury or death to Northern Right whales. See 939 F.Supp. at 984. Indeed, the district court cited several of the Commonwealth's documents in support of this finding, including its statement that " '[f]ive right whales have been found entangled in fixed fishing gear in Massachusetts waters; three in gillnets and two in lobster lines.' " Id. (quoting Right Whales in Massachusetts Waters, An Executive Summary at 2). The court further cited to affidavits of three scientists that suggested that entanglement of Northern Right whales had harmed, injured, or killed those whales. The court cited eleven occasions on which Northern Right whales had been found entangled in fishing gear in Massachusetts waters between 1978 and 1995. The court also indicated that at least fifty-seven percent of all Northern right whales have scars indicating prior entanglement with fishing gear and noted that, even where the whale survives, the entanglement still wounds the whale. Although these findings indicate only that entanglements have occurred in Massachusetts waters, the district court determined that three whales had been found entangled in gear deployed in Massachusetts waters.

The defendants contend that the factual evidence before the district court did not support a finding that the Commonwealth has perpetrated a taking. The defendants' main contention is that the "District Court made its 'taking' determination ... based on speculation that Northern Right whales have become entangled in fishing gear: (1) deployed in Massachusetts coastal waters; and (2) licensed by the Commonwealth." Appellants' Br. at 42. The defendants first state that they submitted affidavit evidence indicating that no deaths of Northern Right whales had occurred in Massachusetts coastal waters. While this may be true, it answers only half the taking question, which bars not only killings of, but also injuries to, Northern Right whales. Because the district court need not have made a determination as to whale deaths in determining whether the Commonwealth exacted a taking, we find no error.

The defendants acknowledge that the district court relied on a scientist's affidavit that was supplied by amicus curiae Conservation Law Foundation. The defendants do not challenge the factual statements asserted in the affidavit, including the one relied upon by the district court that "[t]hree of the entanglements of endangered whales ... clearly involved fishing gear that was deployed in Massachusetts waters." Despite the defendants' protests that the district court was engaging in speculation when it found that whales have become entangled in fishing gear deployed in Commonwealth's waters, in fact the district court relied on the unchallenged factual assertion in the scientific affidavit. Thus, the defendants' first challenge to the district court's fact-finding speculation is not valid.

With respect to the district court's determination that these entanglements involved gear licensed by the Commonwealth, the district court relied on the affidavit regarding the three entanglements that occurred in Massachusetts waters. The affidavit explained that the whales were found entangled in gear "fixed" in Massachusetts waters such that the whale could not escape because it could not break free of the gear. The district court's inference that gear fixed in Massachusetts waters was licensed by the Commonwealth, and was not set illegally or brought into Massachusetts waters from another area by the whale, was reasonable and we find no clear error in that inference.

The defendants next contend that the district court ignored evidence of the significant efforts made by the Commonwealth to "minimize Northern Right Whale entanglements in fishing gear," and evidence of other causes of takings of Northern Right whales. With respect to the determination of whether a taking has occurred, the district court quite rightly disregarded such evidence. Given that there was evidence that any entanglement with fishing gear injures a Northern Right whale and given that a single injury to one whale is a taking under the ESA, efforts to minimize such entanglements are irrelevant. For the same reasons, the existence of other means by which takings of Northern Right whales occur is irrelevant to the determination of whether the Commonwealth has engaged in a taking.

Finding neither any error of law nor any clear error with respect to the factual findings, we believe that the district court properly applied the ESA to the facts presented and was correct in enjoining the Commonwealth so as to prevent the taking of Northern Right whales in violation of the ESA.

Defendants claim that the injunctive relief granted by the district court goes beyond the scope of remedies available in an action against state officials. Specifically, defendants claim that, although the district court could have ordered an injunction barring all Commonwealth licensing activity, it could not require the Commonwealth to implement measures designed to accord Northern Right whales greater regulatory protection. Defendants argue that the statutory scheme, the Eleventh Amendment, and the Tenth Amendment all bar the measures ordered by the district court.

The ESA's citizen suit provisions authorize

any person [to] commence a civil suit on his own behalf--(a) to enjoin any person, including the United States and any other governmental instrumentality or agency (to the extent permitted by the eleventh amendment to the Constitution), who is alleged to be in violation of any provision of this chapter or regulation issued under the authority thereof....

16 U.S.C. § 1540(g)(1). The very fact that Congress has limited its authorization to suits allowed by the Eleventh Amendment reinforces the conclusion that Congress clearly envisioned that a citizen could seek an injunction against a state's violations of the ESA. Defendants' claim that the district court exceeded its authority to order injunctive relief against the Commonwealth under the ESA statutory scheme is ultimately grounded in the limitations provided under the Eleventh Amendment.

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by the Citizens of another State, or by Citizens or Subjects of any Foreign State.

U.S. Const. amend. XI. "The Amendment ... enacts a sovereign immunity from suit, rather than a nonwaivable limit on the federal judiciary's subject-matter jurisdiction." Idaho v. Coeur d'Alene Tribe of Idaho, --- U.S. ----, ----, 117 S.Ct. 2028, 2033, 138 L.Ed.2d 438 (1997). This Amendment has been interpreted to provide sovereign immunity not only to suits by citizens of another state, but also to suits by the state's citizens. Id. Suits invoking both diversity and federal-question jurisdiction of Article III may be barred by the Amendment.